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Will The Supreme Court Become 'First Amendment-Free Zone?'

(Al Drago/CQ Roll Call)

A federal appeals court ruled Friday that protesters at the Supreme Court of the United States are confined to the sidewalk, which was disappointing news to those who argued that restricting demonstrations on the court's plaza violated the First Amendment.  

“The Constitution guarantees the right to peaceably assemble ... [It] doesn’t say just to petition Congress or the president, but the government. And the Supreme Court is one of the three branches of government,” attorney Jeffrey Light, who argued that a ban on demonstrations was unconstitutional, said in a phone interview. "The court has essentially created a First Amendment-free zone on the plaza of the Supreme Court.” Three D.C. circuit judges sided with the U.S. government, overturning a lower court's decision that the law banning demonstrations on the Supreme Court grounds was unconstitutional. According to the decision, while demonstrations on the sidewalk are permitted, those on the actual grounds, including the steps and the plaza in front of the court, are prohibited because the court is a "nonpublic forum." The judges also decided that barring demonstrations ensures the court is not swayed by public opinion.  

The case originated when Harold H. Hodge, Jr., was arrested on Jan. 28, 2011 for standing on the court's ovular plaza with a sign, "The U.S. Gov Allows Police to Illegally Murder and Brutalize African Americans And Hispanic People” hanging around his neck.  

"Hodge’s purpose in going to this site and wearing the sign was to engage in expression on political matter of personal interest, as an African-American citizen, public interest and importance, and to raise awareness about the adverse treatment of minorities by law enforcement,” Hodge's lawyer argued in court documents. His arrest and the statue banning demonstrations allegedly "deterred and chilled" Hodge's desire to engage in "peaceful, non-disruptive political speech" on the plaza.  

The prohibition on demonstrating originated in a 1949 law, which banned any assemblies or flags or banners that would "bring into public notice a party, organization or movement.” In 1983, the Supreme Court ruled that demonstrators could display signs and gather on the sidewalks around the court, since they are not part of the grounds.  

Judge Sri Srinivasan did note in his opinion that the Supreme Court Police can sometimes exercise discretion when enforcing the ban.  

Srinivasan said the police "in certain situations might opt to allow demonstrators onto the plaza for a brief period" in some unique circumstances.  He pointed to an instance last November when demonstrators reacting to Michael Brown's death in Ferguson, Mo., were allowed to gather on the court steps for a short time.  

Srinivasan also wrote that Congress still has the power to change the law and allow demonstrators to gather on the grounds.  

"None of this is to say that Congress could not choose to dedicate the Supreme Court plaza as a forum for the robust exercise of First Amendment activity by the general public," Srinivasan wrote. "The plaza could be transformed into a setting for demonstrations and the like. And if Congress were to open up the plaza as a public forum, the space would become subject to the same First Amendment rules that govern across the street on the grounds of the Capitol."  

But Light argued that the solution is not as simple as passing another law.  

"I think it’s the court’s duty, if the Congress passes a law that violates the first amendment, to overturn it rather than just hoping Congress will change its mind," Light said.  

Light noted that even if Congress were to change the law, the Supreme Court still has the power to pass regulations that govern its grounds.  

For example, when a lower court sided with Hodge in 2013, declaring the ban unconstitutional, the Supreme Court passed "Regulation 7," barring demonstrations on its grounds. Light is also involved in a related case challenging that regulation, but the case was put on hold as the Hodge case remained uncertain.  

“Even if Congress were to repeal it, the Supreme court still has this regulation 7," Light said. "And so Congress in fact may not have the power to permit protest unless they also repeal the Supreme Court’s authority to issue regulations.”  

Light said they were considering their next steps in the case, which could include asking that the full court consider the case, or appealing the case to the Supreme Court.  

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